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What you can do with two different licenses

2017.02.09
Daisuke Hirano





Daisuke Hirano
Lawyer and doctor

When I was a high school student, I wanted to become a lawyer specializing in the medical field and dealing with malpractice, etc.

While it may be different from the ideal I had in mind back then, as a double license holder, I would like to continue exploring what I can do, and supporting proper medical practice.

Malpractice in the past

In the past, when it came to malpractice, almost undoubtedly it was the patient who would lose the case.

When I found out how high a proportion of patients lost their court cases, even as a high school student I was shocked. This spurred me on to begin investigating just what was behind the high proportion of patients’ lost court cases. I learned that there were three main factors that put the patients at a disadvantage: the specialized nature of medical care, confidentiality in medical care, and medical care providers covering up for one another. I felt it was my mission to break these down.

The method I hit upon in order to defeat these problems was to become both a doctor and a lawyer. With this in mind, I thought that I would first become a doctor, for which it was essential to go to university, and so I enrolled in a medical faculty. Back then there were no such things as law schools, and in order to become a lawyer all I had to do was to pass the bar exam. For that reason, I decided to become a doctor first.

In around 1999, when I was at university, several big incidents occurred, and I believe that these caused major changes in the environment surrounding malpractice thereafter.

Up until then, it seemed that even claiming malpractice was not tolerated. I believe the situation began to change following reporting of a series of malpractice. In particular, with the incident at the Tokyo Metropolitan Hiroo Hospital, I remember that doctors were criticized almost daily in the mass media.

A period when medical care was criticized

That marked the turning point after which the situation in society began to change, and malpractice became commonly featured in the news.

Perhaps it was because at the medical faculty, I had stated first that I wanted to be a lawyer for patients, I began to hear the anxious opinions of many doctors regarding mass media’s focus on malpractice.

Malpractice had become an easy target for criticism. Then, for me, who had been aiming from the start to help more patients win their court cases regarding malpractice, it seemed as though somebody else had already achieved my goal. I felt that I didn’t have to go to all that trouble to become a lawyer after all, and I decided to carry on as I was and become a doctor at a clinic. This was because I had decided to go into business as a doctor.

Then, when I had finished my initial clinical training, I chose surgery.

Surgery is a cruel field. Patients may start bleeding from unexpected places, or be imperfectly stitched up. Even outside of surgical procedures, endoscopy carries the risk of perforation of the gastrointestinal tract. Even when a patient has an increased risk of perforation, if the benefits of carrying out an examination are judged to be particularly high, then an endoscope will be inserted anyway, and so on occasion actual gastrointestinal perforation occurs.

Sometimes, when an antibiotic has been injected in cases it has not been possible to identify the bacteria, it turns out to have been a fungus instead. Sometimes when the lungs are pierced in order to drain them, the air comes out as well.

None of these results are anticipated.

And, in cases like these when the results are not as expected, sometimes the doctor is sued by the patient.

The motive behind my aim to become a lawyer

Doctors can be sued by their patients for everyday medical care procedures, and while I know that this is in some ways unavoidable, I think it very frightening.

Perhaps this is because most doctors (as well as nurses) have never previously experienced anything like a trial, and think that they are going to be charged with responsibility for the consequences. They may also be anxious about whether the court will fully understand the events that transpired at the time.

You may notice I was rather rebelling against my past ideas at this point.

With the situation being like this, instead of continuing with medical care, I wanted to support my seniors and my friends who were struggling in the medical field. Carrying on with surgery was no longer an option for me. Now I stood in a place that was the complete opposite of where I used to be, and I began to tread the path to becoming a lawyer for the medical institutions.

The importance of having lawyers with clinical experience

Having now become a lawyer, I am glad to have worked on site in the clinic. When malpractice becomes a problem, the Medical Care Act and Medical Practitioners’ Act have no role to play. At the time of legislation, there was no particular awareness of malpractice, and only a very small amount of the texts of the Civil Code are referred to in order to deal with malpractice.

That is to say, in the case of a dispute, each specific case of medical conduct is judged for negligence.

In a dispute where negligence in the diagnosis and treatment is at issue, the medical action the doctors chose to take and their reason for doing so must be explained. Even if the medical conduct was proper, when it was performed in a different manner from what should have been carried out, such as using the medicine in a way that differed from the package instructions, the doctors could be forced to pay a large sum for damages. When this happens, it is extremely important that they explain the reason for the decision behind their particular medical conduct.

If a lawsuit is actually filed, the doctors will feel extremely anxious. At times like these, if the lawyers have clinical experience, their exchange with the doctors will go smoothly, and as a result they will be able to ease the doctors’ burden and anxiety and gain a better understanding of the decisions they made at the time. Some disputes can be resolved by explaining properly to the opposite party about the medical conduct that was taken.

What lawyers with medical background can do besides handling malpractice

I gradually began to build up my experience as a lawyer, and as a legal consultant for medical institutions I also began taking consultation about other sorts of things besides malpractice. I have been consulted about various matters, including things like labor problems and medical accounts receivable, and I felt that with the firm support of a lawyer even in areas unrelated to medical conduct, medical institutions would become able to put their full effort into the practice of proper medical care. I therefore believed it was a worthwhile thing to do.

Continuing to support medical care

There is one more thing.

It concerns the violation of accountability.

Law does not hold people liable for the consequences of his act, but cases regarding violation of accountability, in effect the defendant is often liable for the consequences.

The parties concerned with the medical care are probably not aware of any contracts. When the patient pays, it is with the awareness that they are paying the hospital, rather than the doctors.

However, when the results are not as expected, plaintiffs allege that doctors have violated accountability based on contract, citing that it was not explained that adverse results would occur. This can naturally develop into a fierce dispute. This can naturally develop into a fierce dispute.

It is true that from a legal point of view, it would probably be appropriate to explain all risks. However, whether or not a good doctor would do so is questionable. It does not seem to me that constantly making each patient aware that treatment may result in death is the best thing to do. I believe that it is a doctor’s responsibility and a required skill to be able to calm their patients’ fears. I also think that for doctors carrying out medical treatment, there are limits on how much of the possible risk they are able to communicate.

I believe, therefore, that it would be better if there was an option of a third party explaining the risks. I am considering whether I personally could get involved in the explanations, or whether there is a different way from conventional ones.

What you can do with two different licenses

For better or worse, the number of dual-qualified lawyer and doctor is still small in Japan. In economic terms, you could perhaps say it is a blue ocean strategy. However, I think that economic rationality cannot serve as the source of values here. I believe that it is not only about the pursuit of efficiency, and it is important to value the attitude that medical conduct is a cooperative task with the patient.

By nature, medical care providers and patients should be partners working together to fight illness. When that relationship is unexpectedly about to break down, I believe that dual-qualified lawyer and doctor can provide a lot of support.

There is a lack of legal provisions related to medical care. This is a field in which, in order to return medical care providers and patients back to their natural states, we must consider various ways so that there is no burden anything other than the proper medical care placed on patients.

I believe that providing explanations of medical conduct would be the key, and I would like to go on to consider other ways, too.

I want to keep moving forward, so that as a dual-qualified lawyer and doctor, I hope to become a bridge between medicine and law, and aim to be a pioneer opening up new fields.
Daisuke Hirano
Lawyer and doctor

 
Daisuke Hirano is a lawyer and a doctor.
He was born in Hiroshima Prefecture in 1978.
He graduated from Shitennoji Gakuen High School, and then graduated from the Department of Medicine in the Faculty of Medicine, the Jikei University, before going on to work at the Nasu Red Cross Hospital Surgery Office.
In 2014, he completed a postgraduate in law in the Chuo Law School.
In September of the same year, he passed the bar examination, and did an apprenticeship in Okayama (68th term).
In 2015, he was registered as a lawyer with the Tokyo Bar Association and entered Ogasawara Konno & Rokugawa law office.

Hirano is a member of the Japan Surgical Society and a practical lecturer at the Chuo Law School.
He is in charge of a wide range of cases, from corporate law and M&A, to law advisor duties at medical institutions and general civil cases.
He makes use of his medical knowledge to provide legal support in malpractice and acknowledgement of prognostic symptoms.

His main work includes Analyzing through judicial precedents: Dealing practically with workplace harassment Q&A (co-written, Seibunsha, June 2016)